(영문) 서울고등법원 2016.10.28. 선고 2016누33515 판결

A. The Plaintiff was appointed as the Prosecutor of the Prosecutor’s Office on May 12, 2000, and was promoted to the Prosecutor’s Office on March 31, 2003, and June 9, 2008, respectively. From December 6, 2010, the Plaintiff started to serve at the Prosecutor’s Office B.

B. Around the time when the Supreme Prosecutors' Office B worked, the Plaintiff obtained a profit margin of KRW 3.7 billion by hearing information on stock investment from D, which is a reporter of access to the Cth daybook, and investing in stocks, and traded stocks for the purpose of gaining profit margin during working hours.

C. On December 9, 2014, the chief prosecutor of the Seoul Central District Prosecutor’s Office requested a disciplinary resolution by taking the Plaintiff’s above act as grounds for disciplinary action. On December 30, 2014, the Seoul High Prosecutor’s General Disciplinary Committee decided to dismiss the Plaintiff. On January 9, 2015, the Defendant notified the Plaintiff that the Plaintiff was dismissed on the 13th day of the same month (hereinafter “instant disposition”). The specific grounds for disciplinary action are as follows.

A. The Plaintiff’s act of purchasing shares (hereinafter referred to as “1”) - around 2010, while working at the Supreme Prosecutors’ Office B, up to 100, up to 200, up to 300 shares and 444 shares were 60 shares, - The Plaintiff’s act of acquiring shares from 6000 shares and 100 shares and 200 shares to 600 shares and 200 shares were 6 shares and 100 shares and 500 shares and 100 shares and 400 shares and 50 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 500 shares and 100 shares and 500 shares and 100 shares and 500 shares.

D. The Plaintiff filed an appeal seeking revocation of the instant disposition with the Ministry of Personnel Management, but the appeals review committee dismissed the Plaintiff’s request on April 17, 2015.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, and 17, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of a ground for the first disciplinary action

A) The Defendant deemed that the information acquired by the Plaintiff from D reporters was “information acquired during the performance of his duties” and deemed that the act of investing in stocks by using such information was a violation of Article 12 of the Code of Conduct. However, the Plaintiff was unable to have a personal relationship with D reporters before the Supreme Prosecutors’ Office was on duty in B, and personal dialogue was divided in addition to duties, and the information related to E was irrelevant to the field where the Plaintiff should collect official information. Therefore, the information acquired from D cannot be deemed as an “information acquired during the performance of duties” and even if the Plaintiff obtained profit margins by using the information, it cannot be deemed as having acquired unfair profits by using his position since it was not related to his duties. Nevertheless, the Defendant deemed that the Plaintiff acquired the said information while performing his duties, and thus, the instant disposition was unlawful.

B) The Plaintiff was amended by the State Public Officials Act No. 11392 on March 21, 2012, and invested in E shares by acquiring information on E from D reporters before the enforcement of the former State Public Officials Act from June 22, 2012 (amended by the former State Public Officials Act; hereinafter referred to as the “former State Public Officials Act”). Since the statute of limitations under the former State Public Officials Act is two years, the instant disposition made after the lapse of two years is unlawful.

2) Non-existence of a ground for the second disciplinary action

Although the Plaintiff made an investment in shares during working hours, it does not interfere with the Plaintiff’s performance of duties or neglect his/her duties. Therefore, it cannot be deemed that the Plaintiff violated the duty of good faith under Article 56 of the State Public Officials Act merely by simply making an investment in shares during working hours.

(iii)the deviation from and abuse of disciplinary discretion;

Even if the grounds for disciplinary action are acknowledged against the Plaintiff, it is against the principle of proportionality to take excessive disciplinary action, such as the Plaintiff’s work performance, rather than taking into account a disciplinary action, and to dismiss the Plaintiff compared to the misconduct committed by the Plaintiff. Furthermore, in light of the number of disciplinary action against the public officials who obtained pecuniary benefits by investing shares with the information acquired during the performance of their duties similar to the Plaintiff, the instant disposition that was dismissed by

B. Relevant legislation

It is as shown in the attached Form.

1) At the time of the Plaintiff’s purchase and sale of shares E, the major contents of the E-related disclosure are as follows.

○ Suspension of trading stock certificates on February 17, 2012 due to concerns over the designation of management issues (the occurrence of business losses for the latest four consecutive business years)

○ Designation of management issues on March 22, 2012 (the occurrence of business losses for the latest four consecutive business years)

○ Resolution on April 6, 2012 for issuing new shares by a third party

○ Publication on April 30, 2012 / [Investment Principle] Small and Medium-Scale Points, and Small and Medium-Scale Account Holdings

○ Public Notice of Decision on May 24, 2012 (Decision to increase the capital of 25,817,556 shares by allocating it to a third party to H)

○ Suspension of E Stock Transactions from August 17, 2012 to September 27, 2012

○ On August 16, 2012, the change of the representative director (J representative director of the Company I) and the change of the largest shareholder (H) are published.

○ Change of E’s trade name on March 22, 2013 to “F”

2) On March 2012, 2012, the Plaintiff asked D to verify the above information through an employee of Samsung Information Team (a department dispatched from Samsung to Samsung Island in order to examine the political and media trends) and verified that D actually contacts Samsung’s actual contact with Samsung.

3) The Plaintiff, as a high school line, informed G engaged in stock investment business of the above information, sought advice as to whether it will make an investment in E, and G responded to the purport that it is worth investing in E on April 30, 2012. The Plaintiff already purchased shares of E, 647,371 before receiving the aforementioned answer from G. The Plaintiff purchased shares of E, and then purchased shares of 1,178,924 shares of E by July 6, 2012 from G, and purchased shares of 835,090,091 shares of E until July 6, 2012.

4) On April 20, 2012, the Plaintiff first purchased E’s shares, which was KRW 706 per share based on the closing price, but the share price began to rise since before the date of the public announcement that the Plaintiff would have been invested by H, a stock company, following the decline in KRW 533 per share on May 18, 201 of the same year. From June 4, 2012 to August 14, 2012, the Plaintiff sold shares 1,147,360 from June 4, 2012 to the date of the public announcement that the Plaintiff would have received an investment from H. The Plaintiff sold shares of KRW 1,140 per share on August 14, 2012, and the Plaintiff finally sold shares of KRW 4,140 per share, but the volume of the Plaintiff’s share transaction was suspended from the 17th day of the same month after three days later. Detailed details of the Plaintiff’s share transaction were as indicated in the attached list.

5) Meanwhile, the Plaintiff was recognized as having performed activities related to K on June 30, 2003 and received a special inspection commendation from the special prosecutor. On February 28, 2004, the head of the Central Investigation Division of the Supreme Prosecutors' Office recognized as having contributed to the investigation of illegal election funds. On December 31, 2007, the Plaintiff was awarded a commendation after being recognized as having contributed to the faithful performance of duties and the eradication of narcotics by the Minister of Justice. The Plaintiff written the “M” portion among the books in the name of “L” published by the Supreme Prosecutors' Office, and was demoted from May 30 to September 2012, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 5, 9, 11, 12, 13, 14, Eul evidence Nos. 2 through 16, the purport of the whole pleadings

D. Determination

1) Whether grounds for disciplinary action exist

A) Articles 56 and 63 of the State Public Officials Act, Article 12 of the Code of Conduct for Public Officials of the Supreme Prosecutors' Office, which provide a general prohibition obligation for public officials of the Republic of Korea rather than a provision that is a premise for a criminal disposition. If a public official violates this provision, it is only a matter of disciplinary liability. Therefore, it does not strictly interpret it as the criminal disposition provision that applies without the principle of no punishment without the law, but should be interpreted for a purpose consistent with the legislative purpose and purport of the provision. In addition, considering the status of public officials widely entrusted with public duties by the public and serving for the whole of the people, the act of impairing the dignity of public officials as well as the people's trust in the public society, Article 63 of the State Public Officials Act provides that public officials shall maintain their dignity, which includes not only the part related to their duties, but also the part related to their duties, which requires public officials to lead a sound life, and the term "finitely" refers to the duty of good faith and duty of care imposed on public officials (see, e.g., Supreme Court Decision 2018Du197., Sept. 2197, 2, 20197, etc.

B) Furthermore, Article 12 of the Code of Conduct for Public Officials of the Supreme Prosecutors' Office prohibits public officials from investing in securities, etc. using information that they came to know in the course of performing their duties. This is also a free national of one person who has made such investment in securities, etc., so long as the investment in securities, etc. complies with the laws and regulations, and does not reach a level of considerable and significant influence on their duties, the public officials belonging to the Supreme Prosecutors' Office may not prohibit the investment in securities itself. However, since public officials belonging to the Supreme Prosecutors' Office are in special positions that are highly likely to contact information

However, the above code of conduct only prohibits the transaction or investment of securities itself, and does not require that it would take unfair advantage of such transaction or investment, and the investment in general securities continues to be made several times under a single and continuous criminal intent, unlike real estate transaction, and the sale of securities so purchased once constitutes a kind of act after the original acquisition of low price of stocks, unless there are special circumstances that information related to duties has been used in the process of sale, it can be deemed that the ordinary type of "act of trading or investment in securities" prohibited in Article 12 of the above code of conduct is prohibited as a crime by comprehensively considering that public prosecutor's office's act of purchasing securities is a single and continuous criminal act with specific awareness, knowledge, and arranged materials newly known in the course of performing his/her duties, and it does not require that it be prohibited as a crime of continuously purchasing securities by using the information acquired in the course of performing his/her duties. Thus, if the public prosecutor's act of purchasing securities unfairly continues to be done by using the information acquired in the course of performing his/her duties, it cannot be interpreted as a series of reasons that it has not been disclosed or renewed.

B) In light of the aforementioned legal principles, the Plaintiff, a prosecutor of the Supreme Prosecutors’ Office B, purchased approximately KRW 80 million shares E 30 times in total from April 20, 2012 to July 6, 2012, based on a series of securities investment using information known to him/her while performing his/her duties, and the facts acknowledged earlier and Eul evidence Nos. 11-3, 13, 14, and 17, together with the overall purport of the pleadings, it is reasonable to deem that the Plaintiff, a prosecutor of the Supreme Prosecutors’ Office B, was in violation of Article 63 of the State Public Officials Act (Duty to Maintain Property) and Article 12 of the Code of Conduct for Public Officials of the Supreme Prosecutors’ Office (Restriction on Transactions, etc. Using Information Related to Duties), and the purchase and sale of large ScCB shares, etc. repeatedly conducted during work hours, violates the duty of good faith under Article 56 (1) of the State Public Officials Act.

① According to the provisions regarding the Secretariat of the Prosecutor’s Office, the office work is defined as P, and Q, R, and S are regulated to be in charge of Q, and Q, and S. However, the "duty" referred to in the "information learned in the course of performing duties" under Article 12 of the Code of Conduct for Public Officials of the Supreme Prosecutors’ Office is not limited to the official duties in charge of the relevant prosecutor’s office or duties in the process of performing duties, but it is reasonable to say that it means the duties to be performed under the direction of the superior and all related duties.

② On December 2010, the Plaintiff became aware of the national prosecutorial police officer D was from the beginning of serving in the Supreme Prosecutors’ Office B on December 2, 2010, and the Plaintiff and D had been in a position of four to five times a day, and maintained an official relationship with only one hour a day and also with each other, sharing information. On March 3, 2012, 201, the Plaintiff sought information on E-related investment from police officers and police officers D, and again requested D to verify the said information through Samsung’s Information Board, and this verification was that “D contact with E” was not reported to the upper part. The Plaintiff did not report the above information to the lower part.

③ From April 20, 2012 to May 24, 2012, the Plaintiff purchased KRW 653,873,521 of E’s shares over 24 occasions from April 20 to May 24, 2012, the Plaintiff purchased KRW 146,754 of E’s shares over six occasions from May 24, 201 to July 6, 201. There is no evidence to find out any special circumstance that the Plaintiff’s act of purchasing the instant shares based on the foregoing information has been continuously and uniformly suspended or renewed a single criminal intent.

④ On April 2012, the Plaintiff purchased KRW 1,178,924 shares E during the loan of KRW 465 million to D reporters, such as KRW 90,000,000,000 from T, which is a part of the public prosecutor’s office, KRW 465,000,000,091, which was 660,274,276,000 due to existing shares investment in the public prosecutor’s office. As a public official’s status, the Plaintiff’s investment in so-called “brebrebak-type share investment” based on the information acquired in the course of performing his/her duties, which was contrary to the integrity of public duties and the public’s trust, is likely to be subject to criticism.

⑤ On April 24, 2012, the Plaintiff purchased E shares of at least KRW 50 million per day during the period of purchase of E shares. In addition, on August 2, 2012, the Plaintiff sold KRW 230,000 of E shares at KRW 926,950,000 for eight times per day. On August 3, 201, the Plaintiff sold shares of KRW 735,300,000 of E shares over six times, KRW 80,00 of E shares at KRW 331,178,924 KRW 835,090,000, and KRW 361,00 of the same month, KRW 361,00 of the total number of shares purchased at KRW 1,178,924 KRW 835,090,091, KRW 1,147,360,54,000 of the shares purchased at KRW 2301,6305,7.75.37.1.

C) Next, the starting point of the statute of limitations for disciplinary action should be based on the last one of the series of actions (see Supreme Court Decision 85Nu841, Jan. 21, 1986) even if the period of prescription has expired due to the continuous series of actions committed by the Plaintiff regarding the termination of the statute of limitations for the instant E-stocks, regardless of H’s investment on April 20 and May 24 of the same year, since the Plaintiff’s act of purchasing the instant E-stocks began on the basis of continuous and single criminal intent based on the information obtained from D as above in the course of performing his duties and continued to take place on July 6 of the same year regardless of H’s publication, the period of prescription for the instant act of purchasing the E-stocks should be calculated from July 6, 2012, which is the last one of the grounds for disciplinary action against the Plaintiff under Article 28-13 of the State Public Officials Act, which is not the grounds for disciplinary action under Article 28-1 of the former State Public Officials Act.

2) Whether there is deviation or abuse of discretionary power

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is placed at the discretion of the person having the authority to take the disciplinary measure, and only when the person having the authority to take the disciplinary measure is deemed to abuse the authority to take the disciplinary measure since the disciplinary measure as the exercise of the authority has considerably lost validity under the social norms, the measure is unlawful. In addition, in order to deem that a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for a disciplinary measure, etc., and should be deemed objectively unreasonable (see Supreme Court Decision 2012Du10895, Oct. 11, 2012).

With respect to this case, it is recognized as above. However, in light of various circumstances such as the investigation of crimes, execution of the State punishment authority, etc., public officials in the prosecutor's office should observe the law and strictly enforce the law, it requires high level of fairness and integrity. Considering the motive, circumstance, contents, and consequences of the act, the act of the plaintiff's misconduct in this case is seriously detrimental to the institution and people's trust related to the fair performance of prosecutor's duties, and there is little possibility of criticism. According to Article 5 (1) of the Enforcement Rule of the Public Officials Disciplinary Decree of the Public Officials Disciplinary Decree, if two or more misconducts occur without mutual relation, the Disciplinary Committee may decide to take one step more than those with heavy responsibility. Thus, it is difficult to view that the dismissal disposition in this case conforms to the disciplinary criteria under Article 2 (1) [Attachment 1] and Article 5 (1) of the Enforcement Rule of the Public Officials Disciplinary Decree of the Public Officials Disciplinary Act and thus, it is difficult to say that the dismissal disposition in this case seriously violates the principle of equality or other discretionary authority.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted and the plaintiff's claim is dismissed. It is so decided as per Disposition.